NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

TANYA F. PELCHER-HERRING,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2015-3060

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DC-0752-13-0152-B-1.

______________________ 

Decided: May 14, 2015 

______________________ 

TANYA F. PELCHER-HERRING, Greensboro, NC, pro se.

KATRINA LEDERER, Office of the General Counsel, 

Merit Systems Protection Board, Washington, DC, for 

respondent. Also represented by BRYAN G. POLISUK. 

______________________ 

Before NEWMAN, REYNA, and TARANTO, Circuit Judges.
2 PELCHER-HERRING v. MSPB

PER CURIAM. 

Tanya Pelcher-Herring appeals the decision of the 

Merit Systems Protection Board (“Board”) to dismiss her 

petition for review as untimely. For the following reasons, we affirm. 

BACKGROUND

Ms. Pelcher-Herring served as a Training and Development Specialist with the Federal Mediation and Conciliation Service (“Agency”). According to the Agency, Ms. 

Pelcher-Herring did not report to work for nine months 

between January 25 and October 26, 2012. She explained 

to supervisors that her absence was due to physical and 

psychological impairment that prevented her from traveling, speaking in a classroom-level training voice, or dealing with stress related to work. The Agency placed Ms. 

Pelcher-Herring on absent without leave status and 

eventually removed her on October 26, 2012 for medical 

inability to perform. 

Ms. Pelcher-Herring appealed her removal to the 

Board. Her allegations included discrimination, failure to 

accommodate a disability, constructive suspension, harmful error, privacy violations, and retaliation for her protected whistleblowing activities. On March 26, 2013, an 

administrative judge (“AJ”) found that Ms. PelcherHerring’s removal was justified based on her medical 

inability to perform her job, and that she had not established any affirmative defense. 

The Board affirmed the AJ’s initial decision, but found 

that the AJ had failed to address Ms. Pelcher-Herring’s 

allegations of prohibited personnel practices related to her 

whistleblowing activities under 5 U.S.C. § 2302(B)(9)(b) 

and (B)(12). The Board remanded for findings on that

issue.

Following a supplemental hearing, an AJ found that 

Ms. Pelcher-Herring had not proven her allegations of 
PELCHER-HERRING v. MSPB 3

prohibited personnel practices. The AJ credited the 

testimony of Ms. Pelcher-Herring’s managers that at the 

time they were considering her removal, they were unaware of her alleged whistleblowing activities. The AJ 

issued his decision in favor of the agency on July 2, 2014. 

The AJ’s decision included a notice stating that the decision would become final on the later of August 6, 2014 or 

thirty days after Ms. Pelcher-Herring actually received 

the decision. Ms. Pelcher-Herring was a registered e-filer 

on the Board’s electronic filing system at that time. 

On August 7, Ms. Pelcher-Herring used the Board’s efiling system to file a petition for review of the July 2

order. She indicated in her petition that her filing was 

timely because she did not receive the July 2 order until 

July 8. In a motion to accept the filing as timely, Ms. 

Pelcher-Herring further explained that she had good 

cause for the late filing because on July 15, she underwent a surgical procedure and was taking oxycodone, a 

pain medication with physical and mental side-effects. 

On November 12, 2014, the Board dismissed Ms. 

Pelcher-Herring’s petition as untimely, and she appeals. 

We have jurisdiction under 28 U.S.C. § 1295(a)(9). 

DISCUSSION

A. Standard and Scope of Review

Our review of a Board decision is circumscribed by 

statute. We can set the decision aside only if it is “(1) 

arbitrary, capricious, an abuse of discretion, or otherwise 

not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been 

followed; or (3) unsupported by substantial evidence.” 5 

U.S.C. § 7703(c) (2012). The Board has broad discretion 

to control its own docket, and we will not reweigh the 

facts of the case or substitute our judgment for that of the 

Board. See Olivares v. Merit Sys. Prot. Bd., 17 F.3d 386, 

388 (Fed. Cir. 1994). 
4 PELCHER-HERRING v. MSPB

The sole issue on appeal is whether the Board erred 

by dismissing Ms. Pelcher-Herring’s August 7 petition as 

untimely. Although Ms. Pelcher-Herring addresses the 

timelines of her petition, she argues that her appeal 

should be considered on the merits. Brief of Appellant at 

6. She misunderstands the scope of our review. This 

appeal is taken from the final Board decision of November 

12, 2014, which dismissed Ms. Pelcher-Herring’s petition 

as untimely without reaching the merits. Because we 

review only the decision below, the merits are not properly before us, and we will consider only the issue of timeliness. See Alexander v. Merit Sys. Prot. Bd., 152 F.3d 948 

(Fed. Cir. 1998). 

B. Timeliness 

We agree that Ms. Pelcher-Herring’s petition was late 

by one day. Under the Board’s regulations, a petition to 

review must be filed by the later of 35 days after the 

decision issues, or 30 days after the petitioner receives a 

decision. 5 C.F.R. § 1201.114(e); see also 5 U.S.C. § 

7701(e)(1)(A). Ms. Pelcher-Herring did not file within the 

limits set forth by either the 35-day or 30-day calculation. 

Ms. Pelcher-Herring does not challenge the Board’s 

timeliness determination under the 35-day calculation. 

There is no dispute that the AJ’s decision issued on July 2 

and that Ms. Pelcher-Herring filed her appeal on August 

7, more than thirty five days later. Ms. Pelcher-Herring’s 

petition is therefore not timely under the 35-day calculation. 

Ms. Pelcher-Herring nevertheless claims her filing 

was timely under the 30-day calculation because she did 

not receive notice of the decision until July 8, and she 

filed within thirty days thereafter. 

The Board found that Ms. Pelcher-Herring failed to 

demonstrate that she received the decision only on July 8. 

In addition, Board regulations dictate that “documents 
PELCHER-HERRING v. MSPB 5

served electronically on registered e-filers are deemed 

received on the date of electronic submission.” 5 C.F.R. 

§ 1201.14(m)(2). Because Ms. Pelcher-Herring was a 

registered e-filer on July 2, the Board presumed that she 

received the decision when it issued on July 2. The Board 

also found that Ms. Pelcher-Herring offered no basis to 

substantiate her claims of receiving the decision six days 

after it was electronically issued. Consequently, the 

Board saw no basis for deviating from its presumption of 

receipt under § 1201.14(m)(2). We see no abuse of discretion in the Board’s timing analysis. 

C. Good Cause

When a petition is filed late, the Board may nevertheless accept it if the petitioner demonstrates good cause for 

the delay. 5 U.S.C. § 7701(e)(1); 5 C.F.R. § 1201.114(g). 

To determine whether the petitioner has demonstrated 

good cause, the Board has stated it considers: (1) the 

length of the delay, (2) whether the petitioner is pro se, (3) 

the reasonableness of the excuse and the petitioner’s 

showing of due diligence, and (4) whether the petitioner 

presented evidence of circumstances beyond her control 

that affected her ability to comply with the time limits. 

See Palermo v. Department of the Navy, 120 M.S.P.R. 694 

¶ 4 (2014). The petitioner carries the burden of showing 

good cause by a preponderance of the evidence. See

Batdorf v. Merit Sys. Prot. Bd., 582 F. App’x 869, 871 

(Fed. Cir. 2014). 

Noting that Ms. Pelcher-Herring was proceeding pro 

se and that her delay was minimal, the Board nevertheless found she had presented no reasonable excuse for the 

late filing. Regarding her medical condition, the Board 

found that Ms. Pelcher-Herring failed to explain how the 

condition prevented her from timely filing her petition or 

from requesting an extension of time. Regarding her 

confusion about the filing deadline, the Board found that 

Ms. Pelcher-Herring’s misreading of the filing deadline 
6 PELCHER-HERRING v. MSPB

did not establish good cause because she received proper 

notice of the deadline. The Board explained that “a 

party’s misinterpretation or misreading of the filing 

deadline, without more, does not establish good cause for 

an untimely filing where the initial decision informs the 

parties of the proper filing deadline and provides notice of 

the process for filing a petition for review.” 

We find no fault with the Board’s determination that 

Ms. Pelcher-Herring’s medical excuse did not demonstrate 

good cause. 

We also find that the Board did not abuse its discretion by finding that petitioner’s misreading of the filing 

deadline did not demonstrate good cause. It is the petitioner’s burden to show good cause by preponderant 

evidence. As the Board correctly noted, Ms. PelcherHerring has shown nothing to substantiate her claim of 

having received the decision no earlier than July 8. 

Moreover, as a registered e-filer, Ms. Pelcher-Herring 

consented to accept all documents issued by the Board in 

electronic form, see 5 C.F.R. § 1201.14(e)(1), and was 

under obligation to monitor the e-filing system for case 

activity, see id. § 1201.14(j)(3). The Board was therefore 

within its discretion to determine that Ms. PelcherHerring did not carry her burden to prove the alleged late 

receipt or the existence of any confusion derived therefrom. Accordingly, we cannot find that the Board’s actions were arbitrary, an abuse of discretion, or otherwise 

erroneous under the law. 

CONCLUSION

For all of the foregoing reasons, the decision of the 

Board is affirmed. 

AFFIRMED

COSTS

No costs.